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pay at all times upon the demand of its members in case of sickness or accident. It is said that it is an insurance company, and, being an insurance company, it is not organized and carried on according to the laws of the state of Illinois. I do not know that it is necessary for me to decide whether it is an insurance company or not. It does not purport to be. I do not feel called upon to give this arrangement of the company with its employés (for that is what it is in substance) any name to characterize it, or to put it in any particular category. It does not purport to be an insurance company. It is not organized on that idea at all, but is an arrangement be. tween the corporation and the employés, intended to be for the benefit, perhaps, of the employés, and, it may be, indirectly of the corporation. The corporation ought to have a desire to do everything that is reasonable for the welfare and benefit of its employés. There ought to be a mutual interest on the part of the employés and eni: ployers, each to advance the interests of the other. And I do not think that, because it may have some of the elements or features of an insurance company, and because it has not complied with the law in reference to insurance companies in Illinois, I would be allowed to say that therefore it is absolutely void. I cannot think that for a moment. The Wabash, I know, has had for years an arrangement by which hospitals are maintained. There is one main. tained in the town where I live, purchased at a large cost, and owned as here. There all employés who entered the service of the company, of a certain class (conductors, engineers, brakemen, and perhaps others), were required to contribute a certain portion of their earnings; a small per cent. is taken from their monthly pay, and goes to the maintenance of this hospital. The company has its surgeons and nurses there, and people to attend to those who take sick or meet with accidents. This is understood by every one to be mutually beneficial. Of course, the employés pay for that wholly. In this case the members do not pay wholly, because, if there is a deficit, the company seems to have made it up,—not only has done so, but is bound to do so.
There being no contention but what the plaintiff received, or elected to receive, these benefits from the relief association, or relief fund, it is insisted (and I have given that view of the case the best consideration I could) that at the time the plaintiff took this moner—this $48—from the association, he did not know the strength of his case against the company; that he did not know certain important facts that he could prove, and by what witnesses he could prove them; and they have been specified (such as that the engineer in charge of the engine that ran over him was intoxicated, or running at a high and reckless rate of speed in defendant's yards, when the injury occurred, and perhaps other facts); that he did not know by whom he could prove these facts until after he received this money. No authority has been cited in support of the position that ignorance of the strength of his case at the time that he made his election would avoid the effect of that act. I have been thinking over the proposition, and I asked counsel to restate it. There is not an element of fraud in this which can be imputed to the defendant. It was a mere misfortune that the plaintiff did not know the strength of his case; a mere misfortune of the plaintiff not to find out witnesses who would testify to facts which would have enabled him, according to his view, to recover; and, not being in possession of this knowledge, which would, according to his theory, make a case against the company, he thought he had better take what he could get from the relief fund of which he became a member. It must be borne in mind that the plaintiff himself testified to witnessing this fast running at the time he was injured, and to the substance of all the damaging facts, according to his contention, that it is now claimed he was supported in by evidence discovered after he elected to and received the money from the relief fund. I doubt if any authority, either in the text-books or in any well-considered case, can be cited in support of this view. At least I have not been able to find it, and my attention has not been directed to any. Reflecting on the matter, I cannot think that it is sound. In fact, I am satisfied it is not. I supposed that the theory of the plaintiff, when the case was being tried, and after this evidence had been introduced, was that at the time of this acceptance of the benefits by the plaintiff he was acting under the influence of fraud by defendant, or other improper means brought to bear to produce that result. There is no doubt but what fraud would avoid it. There is no doubt but what any sort of undue influence (which is another species of fraud) would avoid it. But to say as a proposition of law that the want of knowledge as to the exact facts and full strength of the case would avoid it, is far beyond where I have the right to go, according to my conception of the law. It is not necessary to say that I reach this conclusion with hesitation, and that I sympathize with the unfortunate always; and especially do I act with reluctance in taking any man's case from a jury before whom he has placed it for decision, and if there was any question of fact disputed for them to pass on I would not do so. I have done so very rarely. But the way it occurs to me, I could not sustain a verdict if it was rendered in favor of the plaintiff. I do not know of any ground on which it could be placed, according to my view. Of course, I am liable to error. According to the way I look at plaintiff's case, it cannot be sustained. Then, from my view, it will do the plaintiff no good whatever to get a verdict, even if the jury should find that he was entitled to one. The jury are to judge alone of the facts of the case (and all so answered), and not of the law. They said they were impartial (I have no doubt they were), and would pass upon the facts without reference to there being a natural person on one side and an artificial party on the other; that they would take the facts from the witnesses and the law from the court, and I have no doubt that they are ready and willing to do so.
One feature has added to my embarrassment with reference to the matter, and increased my sympathy. The plaintiff has borne himself in his evidence in a manly way, and has shown a disposition to tell the facts (and I have no doubt he has) in every particular, and he has made a mistake, perhaps, as it turned out, as far as his own good is concerned, in accepting those benefits; but it has been discovered afterwards, and, no doubt, if he had known what the effect would be, he would have acted differently. Bụt a mere error of judgment cannot be relieved against in a court of law, and does not give me any right or excuse to fail in carrying out the law as I understand it, and you are instructed, gentlemen, to return a verdict in this case for the defendant, and you can be discharged from the further consideration of the case.
DIXON v. WESTERN UNION TEL. CO.
1. INJURY TO EMPLOYE-DEFECTIVE TELEPHONE POLE.
When, in the course of the erection of a telegraph pole by a telegraph company, an occasion arises for the casual and sporadic use of a telephone pole belonging to another company, to remove an obstructing wire, the telegraph company is not at fault because it directs an employé to climb such telephone pole without making a previous inspection to ascer
tain whether it is safe. 2. SAME-ASSUMPTION OF RISK.
The risk from defects in such a pole is incidental to the service of the employé, and is assumed by him, unless he insists on an inspection of the pole.
Action by Thomas W. Dixon against the Western Union Telegraph Company. Demurrer to complaint sustained.
Finch & Finch and Dunn & Love, for plaintiff.
Butler, Snow & Butler and Chambers, Pickens & Moore, for defendant.
BAKER, District Judge. The third paragraph of the complaint, to which a demurrer has been interposed for want of facts, does not aver that the telephone pole belonged to, or was under the control of, the defendant; and, from the fact that it is only empowered to erect and use poles for telegraphic purposes, the court must assume that the defective and unsafe telephone pole belonged to another company, and that the defendant had no interest in, or right of control over, it. The sole ground of negligence charged is in the failure of the defendant and its foreman to inspect the telephone pole and the spikes which had been driven therein, before directing the plaintiff to climb it. It is also alleged that the defendant and its foreman failed to notify the plaintiff that the pole had not been inspected. But, unless the defendant was bound to inspect the pole before directing the plaintiff to climb it, it is not apparent how it could be held responsible for failure to notify him that it had not done something which it was under no obligation to do. The true question, then, is this: Is the defendant responsible to the plaintiff for failure to inspect a telephone pole which does not belong to it, and over which it has no control, but which was casually used as a means of removing an obstructing wire or wires which hindered the erection of a telegraph pole which the plaintiff, with others, was engaged in putting up? It is not averred that there is or was any custom, in the line of service in which the plaintiff was employed, making it the duty of the defendant to inspect telephone poles belonging to another company, which its employés might have occasion casually to climb in the performance of their duties; nor is it alleged that the defendant was under any duty, arising out of contract, to make such inspection. Therefore the duty of inspection, under the circumstances, if any such duty existed, was one imposed by law upon the defendant. Under the circumstances disclosed in this paragraph of the complaint, it does not seem to me that the law governing the relation of master and servant casts any absolute duty of inspection on the defendant, so that the mere failure to inspect the telephone pole would make it responsible for the accident to the plaintiff. So far as I can see, the defendant was no more bound to inspect the telephone pole than it would have been to inspect a tree, where limbs must be removed in order to erect a telegraph pole. It seems to me the risk was incidental to the service, and was assumed by the plaintiff, and that, if he was unwilling to incur the risk, he should have in. sisted on an inspection of the pole before climbing it. Wood, Mast. & Serv. § 414; Bailey, Mast. Liab. p. 102; Dixon v. Telegraph Co., 68 Fed. 630; Flood v. Telegraph Co., 131 N. Y. 603, 30 N. E. 196; Garragan v. Iron Works, 158 Mass. 596, 33 N. E. 652; Trask v. Railroad Co., 156 Mass. 298, 31 N. E. 6; Telephone Co. v. Loomis, 87 Tenn. 504, 11 S. W. 356; Junior v. Power Co. (Mo. Sup.) 29 S. W. 988. The plaintiff voluntarily climbed the pole, without requiring its inspection at the time, or ascertaining whether any one had previously inspected it. As the pole did not belong to the defendant, he knew, or ought to have known, that its maintenance in a state of reasonably safe repair was not a duty incumbent on his employer, and that no occasion requiring it to inspect the pole had arisen, or could arise until the moment when a necessity for its casual use should happen. So far as shown by the paragraph, no one knew that there would be any occasion to climb the tele. phone pole, until, in the erection of the telegraph pole, it was discovered that the removal of the obstructing wire or wires was necessary. When, in the course of the erection of a telegraph pole, an occasion arises for the casual and sporadic use of a telephone pole belonging to another company, to remove an obstructing wire, I do not think it a breach of the master's duty to direct an employé to climb such telephone pole, without a previous inspection of it having been made. Whether the defendant would be responsible for a failure to inspect, if the pole had belonged to it, it is not necessary to consider. The demurrer is sustained.
TEXAS & P. RY, CO. V. RHODES.
1. ACTION AGAINST RAILROAD COMPANY-INJURY TO EMPLOYE-COUPLING CARS.
In an action against a railroad company for injuries received by an employé, while coupling cars, through the disparity in heights of the drawheads of the cars, which was alleged to be due to the sagging of one of the drawheads, caused by defects in the carrier iron, detendant asked the court to charge that defendant was not bound to furnish plaintiff absolutely safe machinery, but owed him the duty of furnishing such as would be reasonably suitable, and to exercise ordinary care to see that it was kept in like condition, and that, in determining this, the jury might consider whether it was usual for defendant to have on its line cars with different heights of drawheads, and also whether those engaged in the transportation and inspection of cars would, in the exercise of reasonable care, consider such defects as were shown by the evidence as such that would likely occur which might be reasonably anticipated by employés. Held, that it was error to refuse such charge, the
substance thereof not being covered by any charges given. 2. SAME.
One paragraph of the charge conveyed the idea that if plaintiff actually knew the condition of the drawhead on the defective car, he could not recover, but that if he did not know which particular car he was coupling, and did not know whether the defective drawhead in that car had been repaired, he would be free from contributory negligence. The evidence was conflicting as to whether plaintiff did identify this car, and as to whether he should have identified the car, or known whether it had been repaired. Held, that it was error to refuse to charge that, though the drawhead had been allowed to become lower than it should have been, plaintiff could not recover, if he knew of this fact, or should have known of it by the exercise of reasonable care.
In Error to the Circuit Court of the United States for the Northern District of Texas.
T. J. Freeman, for plaintiff in error. · D. W. Humphreys and W. P. McLean, for defendant in error.
Before McCORMICK, Circuit Judge, and BOARMAN and SPEER, District Judges.
BOARMAN, District Judge. Plaintiff below filed his original suit in the district court of Callahan county, Tex., and it was subsequently removed by the defendant to the circuit court of the United States for the Northern district of Texas. Therein judgment was had for plaintiff, and the defendant company, now plaintiff in error, brings the matter up on error to this court. The cause of action of defendant in error is shown by his amended petition, filed in this court after the removal, to be as follows:
"For that whereas, heretofore, to wit, on the 18th day of August, 1893, plaintiff was engaged in the service of defendant as brakeman on one of its freight trains, and while in the discharge of his duties as such brakeman attempted to couple two freight cars on defendant's said road, and while attempting to effect said coupling, without any fault on his part, his left hand was, by reason of the defect hereinafter set forth and alleged, caught between the drawheads of said cars, and was so badly mashed and crushed